Trihealth, Inc. v. Attachmate Corp.

Filing 25

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Karen L. Litkovitz on 8/22/2013. (art)

------------------------------------------

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Trihealth, Inc.,

)

Case No. 1:12-cv-00901

)

Plaintiff,
v.

Attachmate Corp.,
Defendant.

)
)

Hon. Sandra S. Beckwith
Mag. Judge Karen L. Litkovitz

)
)
)
)
)
)
)
)
)
)

STIPULATED PROTECTIVE ORDER

WHEREAS, the parties in the above-captioned matter anticipate that they
will make available in discovery certain information of a confidential nature and the
parties have agreed that the following restrictions shall apply to such information, it is
ordered, pursuant to Fed. R. Civ. P. 26(c), that the following provisions shall govern the
documents, materials, deposition testimony and other things or other portions thereof
(and the information contained therein) produced by the parties or non-parties to this
litigation (collectively "Discovery Materials"). The "Litigation" means the abovecaptioned matter (or as the caption may be modified), and any appeal from, through
final judgment.
1.

Designation of "Confidential" and "Highly Confidential/Attorney
Eyes Only" Discovery Material.

All Discovery Materials, including initial disclosures, responses to
discovery requests, deposition testimony and exhibits, and information derived directly
therefrom or portion thereof produced by the parties or non-parties, whether pursuant
to subpoena, order of the court or voluntarily, may be designated by any party or other
person, including non-party recipients of discovery requests as "CONFIDENTIAL" or
"HIGHLY CONFIDENTIAL/ATIORNEYS EYES ONLY," if such party or person believes
in good faith, upon reasonable inquiry, that the Information qualifies as such.
(a) "CONFIDENTIAL" information means information designated as
"CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER" by the producing party that
falls within one or more of the following categories: (a) information prohibited from
disclosure by statute; (b) information that reveals trade secrets; (c) research, technical,
commercial, or financial information that the party has maintained as confidential; (d)
medical information concerning any individual; (e) personal identity information; (f)
income tax returns (including attached schedules and forms), W-2 forms and 1099
forms; or (g) personnel or employment records of a person who is not a party to the
case. Information or documents that are available to the public may not be designated as
confidential information.
(b) "HIGHLY CONFIDENTIAL/ATIORNEY EYES ONLY" information is
all non-publicly available information of a highly sensitive or proprietary nature,
including personal and confidential information relating to current and former
employees, financial information, information technology and data processing, trade
secret and proprietary information, highly sensitive and non public research and
analysis, customer information, highly sensitive marketing and strategic business

2

planning information (including past information indicating current practices), current
or any future pricing information, information relating to research, development, testing
of, and plans for, a party's existing and proposed future products, information relating
to the processes, apparatus, or analytical techniques used by a party in its past, present
or proposed commercial production of such products, information relating to
acquisitions or potential acquisitions of assets, intellectual property or businesses,
communications regarding the Highly Confidential material, deposition testimony,
interrogatory responses, or other Discovery Material or testimony regarding the Highly
Confidential material, and any other information that a party believes in good faith
could be used by a competitor to harm its business; and personal, health or medical
information that is protected from disclosure by operation of federal and state
constitutional, statutory and regulatory law protecting the privacy rights of individuals
including HIPAA.
2.

Method for Designating "Confidential" and "Highly
Confidential/Attorney Eyes Only" Discovery Material.

Designation of Discovery Material as "Confidential or "Highly
Confidential/Attorney Eyes Only" shall be made by affixing to each such Discovery
Material one of the following legends:
• CONFIDENTIAL
• HIGHLY CONFIDENTIAL/ATIORNEY EYES ONLY

(a)

This legend shall be affixed to each page of any document

designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL/ATTORNEY EYES
ONLY," but shall not obscure any part of the text. A designation shall subject the
document, and its contents, to this Order without any further action.

3

(b)

A party or person may designate electronic native format files as

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL/ATTORNEY EYES ONLY," as
appropriate, by noting such designation in an accompanying cover letter and on the CD
or other media device on which such files are produced, without need to include
additional designations within each electronic native format file.
(c)

With respect to answers to interrogatories or requests for

admission, each page ofthese responses containing "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL/ATTORNEY EYES ONLY," information shall be so marked.
(d)

Any person giving deposition or hearing testimony in this litigation

proceeding may designate any or all of the testimony "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL/ATTORNEY EYES ONLY," on the record while the deposition is being
taken, either personally or through counsel. Additionally, a party may designate all, or
any portion of, the transcript of any deposition (or any other testimony) as containing
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL/ATTORNEY EYES ONLY,"
information by notifying the opposing party in writing, within five (5) business days of
receipt of the final transcript (receipt of rough draft will not count towards the 5
business days). All such transcripts shall provisionally be treated as "Highly Confidential
Attorney Eyes Only" until the later of the date the testimony is so designated, or five (5)
business days after the final transcript is received.
3· Use of Discovery Material.
As to Discovery Material or portions thereof, the receiving party shall not

disclose such Discovery Material or portion (or the contents thereof) to others or
otherwise use Discovery Material or portion (or the contents thereof) for any purpose
other than the Litigation and in accordance with the terms of this Order.

4

--~---~------

--------------------------------

----------

Notwithstanding this provision, a receiving party's use of Discovery Material that
already is publicly available is not restricted.

4· Disclosure of and Access to "Confidential" Discovery Material.
"Confidential" Discovery Material may be disclosed, as necessary, to:
(a)

The Court and Court personnel;

(b)

Court reporters, mediators, and the employees of such persons;

(c)

Attorneys of record for a party, and their employed secretaries,

paralegals, legal assistants, as well as outside support services hired by such attorneys
(including, without limitation, copy services, document management services, and
graphic services), without such persons signing a confidentiality agreement;
(d)

In-house counsel for a party;

(e)

The parties;

(f)

An expert or consultant ("Independent Advisor") who is retained

for this Litigation by the attorneys of record;
(g)

Any person who is identified as having prepared, received, reviewed

or been provided access to the "Confidential" material prior to its production in the
Litigation;
(h)

Any person who has been noticed for deposition or as a witness at

trial, and has executed Exhibit A to this Protective Order, provided however that such
disclosure may only occur for the purpose of conducting the deposition or examination
of the person, or assisting in the preparation of such person for deposition or
examination at trial and only if counsel has a good faith belief that the witness has
relevant information regarding the Confidential Discovery Material; and

5

---------------~-------------------------------

(i)

Other persons only by written consent of the producing party or

upon order of the Court and on such conditions as may be agreed or ordered.

5· Disclosure of and Access to "Highly Confidential/Attorney Eyes
Only" Discovery Material.
"Highly Confidential/Attorney Eyes Only" Discovery Material may be
disclosed, as necessary, to:
(a)

The Court and Court personnel;

(b)

Court reporters, mediators, and the employees of such persons;

(c)

Attorneys of record for a party, and their employed secretaries,

paralegals, legal assistants, as well as outside support services hired by such attorneys
(including, without limitation, copy services, document management services, and
graphic services), without such persons signing a confidentiality agreement;
(d)

In-house counsel for a party who have executed Exhibit A to this

Protective Order;
(e)

An expert or consultant ("Independent Advisor") who is retained

for this Litigation by the attorneys of record and who has executed Exhibit A to this
Protective Order, but only if such expert or consultant is not a current or former
employee of a party or subsidiary or affiliate of a party. Should a party engage an
Independent Advisor who falls into this category, prior to disclosing any "Highly
Confidential/Attorney Eyes Only" information, the party seeking to disclose the "Highly
Confidential Attorney Eyes Only" information to the Independent Advisor must provide
to all other parties in writing the name and current employer of the Independent
Advisor; a current resume; and a signed copy of Exhibit A hereto. Within five (5)
business days, any party that has a good faith objection to the disclosure of its "Highly

6

Confidential/Attorney Eyes Only" Discovery Material to the Independent Advisor shall
convey in writing its objection, including the basis for such objection. The parties shall
confer promptly in an effort to resolve such objections. If the parties are unable to
resolve their dispute, the objecting party shall file a motion for protective order to
prevent disclosure to the Independent Advisor;
(f)

Any person who is identified as having prepared, received, reviewed

or been provided access to the "Highly Confidential/Attorney Eyes Only" material prior
to its production in the Litigation; and
(g)

Other persons only by written consent of the producing party or

upon order of the Court and on such conditions as may be agreed or ordered.
6. Challenge to Designation of "Confidential" or "Highly
Confidential/Attorney Eyes Only" Discovery Material.

The designation of any Discovery Material as "Confidential" or "Highly
Confidential/Attorney Eyes Only" is subject to challenge by any party. The following
procedure shall apply to any challenge:
(a)

Meet and Confer. A party challenging the designation of

Confidential or Highly Confidential/Attorney Eyes Only Discovery Material must do so
in good faith and must begin the process by conferring directly with counsel for the
designating party. In conferring, the challenging party must explain the basis for its
belief that the confidentiality designation was not proper and must give the designating
party an opportunity to review the designating material, to reconsider the designation,
and, if no change in designation is offered, to explain the basis for the designation. The
designating party must respond to the challenge within five (5) business days.

7

(b) Judicial Intervention. A party that elects to challenge a confidentiality
designation may file and serve a motion that identifies the challenged material and sets
forth in detail the basis for the challenge. Each such motion must be accompanied by a
competent declaration that affirms that the movant has complied with the meet and
confer requirements of this procedure, Local Rule 37.1 and 37.2. The burden of
persuasion in any such challenge proceeding shall be on the designating party. Until the
Court rules on the challenge, all parties shall continue to treat the Discovery Materials as
Confidential or Highly Confidential/Attorney Eyes Only under the terms of this Order.
7. Duties of Counsel to Act With Respect to this Protective Order.

Counsel for the receiving party shall make a good-faith effort to ensure
compliance with the provisions of this Order. In the event of new counsel and/or change
in counsel, the parties and/ or retiring counsel shall fully instruct new counsel of their
responsibilities under this Order. Counsel for the receiving party agrees to notify all
persons to whom "Confidential" or "Highly Confidential/Attorney Eyes Only" Discovery
Material may be disclosed pursuant to Paragraphs 4 and 5 of their obligations to abide
by the terms of this Order. It is the responsibility of counsel for the receiving party to
ensure that any person obligated to sign Exhibit A to this Protective Order does so prior
to any disclosure. A signed copy of each such agreement shall be maintained by counsel
for receiving party for the duration of the Litigation and provided to counsel for the
producing party within a reasonable time upon request.
8. Inadvertent Failure to Designate.

In the event that "Confidential" or "Highly Confidential/Attorney Eyes
Only" Discovery Material is produced without having been previously marked
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL/ATTORNEY EYES ONLY," the party

8

in receipt of that material shall, upon a written request from the producing party or
person, treat or preserve such Discovery Material in accordance with the confidentiality
designation that the producing party states should have been affixed to it. The producing
party must then, within fourteen (14) days of learning of the inadvertent failure to
designate, re-produce the Discovery Material with the appropriate confidentiality
designation. The inadvertent failure of a party or person to designate Discovery Material
as "Confidential" or "Highly Confidential/Attorney Eyes Only" at the time of production
shall not be deemed a waiver of the protections afforded by this Order, either as to
specific information in the Discovery Material or as to any other information relating
thereto or on the same or related subject matter. However, no party shall be responsible
to another for any use made of information produced hereunder and not identified or
designated as "Confidential" or "Highly Confidential/Attorney Eyes Only" prior to the
date on which the producing party notified the receiving party of the inadvertent failure
to designate.
9· Inadvertent Production of Privileged Discovery Material.

Inadvertent production of any Discovery Material in the Litigation by any
party or person, that such party or person later claims should have been withheld on
grounds of privilege (an "Inadvertently Produced Privilege Document"), including but
not limited to the work product doctrine and the attorney-client privilege, will not be
deemed, in itself, to waive any privilege or work product protection either as to specific
information in the Inadvertently Produced Privilege Document or as to any other
information relating thereto or on the same or related subject matters. A party or
person claiming privilege or other protections for an Inadvertently Produced Privilege
Document may notify any party that received the Inadvertently Produced Privilege

9

Document and state the basis for withholding such Inadvertently Produced Privilege
Document from production. After being notified, any receiving party must not use or
disclose the Inadvertently Produced Privilege Document until the claim is resolved and
must take reasonable steps to retrieve and recover the Inadvertently Produced Privilege
Document if the party disclosed it before being notified.
In addition, within ten (10) business days, any receiving party must return
or destroy the specified Inadvertently Produced Privilege Document and any copies it
has. The producing party must retain a copy of the Inadvertently Produced Privilege
Document until the resolution or termination of the Litigation. After an Inadvertently
Produced Privilege Document is returned or destroyed pursuant to this Paragraph, a
party may move the Court for an order compelling production of the Inadvertently
Produced Privilege Document, but such party may not assert as a ground for entering
such an order the mere fact of inadvertent production. If a receiving party has a good
faith belief that a received document might be subject to any privilege, the receiving
party shall promptly notify the producing party of the document's production
10.

Filing of "Confidential" or "Highly ConfidentialfAttorney Eyes

Only" Material
A party may not file in the public record in this action any "Confidential" or
"Highly Confidential/Attorney Eyes Only" Discovery Material before first either giving
the designating party adequate notice of the intent to file the protected material or filing
with the court a motion to file under seal. This Protective Order does not authorize
filing protected materials under seal. No document may be filed with the Court under
seal without prior permission as to each such filing, upon motion and for good cause
shown, including the legal basis for filing under seal. See Procter & Gamble Co. v.

10

- - - - - - - - - - - - - - - - - - - - - - - - - - -

Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996). Unless the Court orders otherwise, all
sealed documents shall be filed according to S. D. Ohio Civ. R. 79.3.
11.

Use of Discovery Material in Hearings or Trial.
Nothing contained in this Order shall be construed to prejudice any party's

right to use at any hearing or trial before the Court any "Confidential" or "Highly
Confidential/Attorney Eyes Only" Discovery Material. A party that intends to present or
that anticipates that another party may present Confidential or Highly
Confidential/Attorney Eyes Only Discovery Material shall bring that issue to the Court's
and parties' attention by motion or in a pretrial memorandum without disclosing the
Confidential or Highly Confidential/Attorney Eyes Only information. The Court may
thereafter make such orders as are necessary to govern the use of such Discovery
Material at trial or hearing.
12.

Discovery Material Subpoenaed or Ordered Produced in Other
Litigation.
(a) If a receiving party is served with a subpoena or an order issued in

other litigation that would compel disclosure of any Discovery Material, the receiving
party must notify the designating party, in writing, immediately and in no event more
than three court days after receiving the subpoena or order. Such notification must
include a copy of the subpoena or court order.
(b) The receiving party also must immediately inform in writing the party
who caused the subpoena or order to issue in the other litigation that some or all of the
material covered by the subpoena or order is the subject of this Order. In addition, the
receiving party must deliver a copy of this Order promptly to the party in the other
action that caused the subpoena to issue.

11

(c) The purpose of imposing these duties is to alert the interested persons
to the existence of this Order and to afford the designating party in this case an
opportunity to try to protect its Discovery Material in the court from which the
subpoena or order issued. The designating party shall bear the burden and the expense
of seeking protection in that court, and nothing in these provisions should be construed
as authorizing or encouraging a receiving party in this action to disobey a lawful
directive from another court. The obligations set forth in this paragraph remain in effect
while the party has in its possession, custody or control Discovery Material by the other
party to this case.
13. Redaction of Confidential Information.

(a) Each party redacting information from reproduced documents subject
to this Order shall prepare a log identifying the nature of the information redacted from
reproduced documents in sufficient detail to allow the receiving party to determine
whether a challenge to the redacted information may be appropriate. If the receiving
party has a good faith basis for challenging the redaction, the receiving party shall
promptly inform the producing party of such and any information that would identify
clinical trial subjects or patients referred to in adverse reaction reports, product
experience reports, consumer complaints and other similar data, and any third party
involved with such subjects or patients, including but not limited to a health care
provider, dentist, hospital or other institution; (ii) home addresses; (iii) social security
numbers, other than the last four digits; and (iv) any information protected from
disclosure by operation of federal or state constitutional, statutory and regulatory law
protecting the privacy rights of individuals, including HIPAA. Each party redacting

12

information from reproduced documents subject to this Paragraph shall comply with the
provisions discussed in paragraph (a) above, including the preparation of a log.
14. Inadvertent Disclosure of Discovery Material Designated as
Confidential or Highly Confidential/Attorney Eyes Only.

Should any Discovery Material designated as "CONFIDENTIAL" or
"HIGHLY CONFIDENTIAL/ATTORNEY EYES ONLY" be disclosed, through
inadvertence or otherwise, to any person or party not entitled to receive the information,
then the parties intend to have such person automatically be bound by this Order and (i)
such person shall be informed promptly of all the provisions of this Order by the
disclosing party; (ii) such person shall be identified immediately to the producing party;
(iii) the disclosing party shall use its best efforts to have such person sign Exhibit A to
this Protective Order and forward a copy of the signed Exhibit A to the requesting party;
and (iv) the disclosing party shall use its best efforts to retrieve and return such
Discovery Material. If both parties agree that a disclosure of "Confidential" or "Highly
Confidential/Attorney Eyes Only" Discovery Material was inadvertent, and the
disclosing party has complied in full with this paragraph, the producing party will not
seek sanctions associated with the disclosure. If the disclosing party claims that the
disclosure of "Confidential" or "Highly confidential/Attorney Eyes Only" Discovery
Material was inadvertent, and the producing party disagrees, the producing party agrees
to meet and confer with the disclosing party before seeking sanctions associated with the
disclosure.
15. Modification by Court.

This Order may be changed by further order of the Court, and is without
prejudice to the rights of any party or non-party to move for relief from any of the

13

provisions, or to seek or agree to additional protection for any particular Discovery
Material. Nothing in this Order shall prevent any party or non-party from applying for a
modification of this Protective Order to resolve issues that may arise; or from applying
to the Court for further or additional protective orders. In the event of any motion to
modify this

Prot~ctive

Order, the receiving party shall make no disclosure of any

Discovery Material designated as "Confidential" or "Highly Confidential/Attorney Eyes
Only" which are at issue in such motion, until the Court enters a final order on the issue
concerning the proposed modification.
16. Post-Litigation Handling of Materials and Documents.

Within sixty ( 6o) days after conclusion of this Litigation, whether by final
adjudication on the merits, or by other means, each party or other person or non-party
subject to the terms of this Order, with the exception of the Court, shall be obligated to
return, or confirm in writing that they have destroyed, all Discovery Materials, as well as
any documents, logs, reports or summaries including such information.
17. Enforcement of this Order/Jurisdiction.
This Order shall remain in full force and effect while the Litigation is
pending and after the termination of the Litigation. During the pendency of the
Litigation, each party and person subject to this Order shall be subject to the jurisdiction
of this Court for the purpose of enforcement of the terms of this Order. After
termination of the Litigation, each party and person subject to this Order shall be
subject to the jurisdiction of any court or tribunal of appropriate jurisdiction for the
purpose of enforcement of the terms of this Order.

18. Efforts to Resolve Disputes.

14

The parties shall negotiate in good faith to resolve any dispute relating to
any alleged violation of this Order prior to making any motion to the Court relating to
any violation or alleged violation of this Order. Each such motion must be accompanied
by a competent declaration that affirms that the movant has complied with the meet and
confer requirements of this procedure, Local Rule 37.1.
19. Willful Violation.

Any willful violation of the terms of this Order may, in the discretion of the
Court, be found to constitute a contempt of Court, which may result in sanctions to be
fixed by the Court in its discretion.
20.

Consent
The signatories hereto stipulate and consent to the issuance of this Order

as an Order of the Court.
IT IS SO ORDERED

~~

Mag. Judge Karen L. Litkovit
AGREED: August 16, 2013

Is/ Kimberly A. Conklin
Richard M. Kerger (0015864)
Kimberly A. Conklin (0074726)
KERGER & HARTMAN, LLC
33 S. Michigan Street, Suite 100
Toledo, OH 43604
[phone]
[phone] (fax)
rkerger@ kergerlaw.com
[e-mail]

Is/ David J. Butler
David J. Butler, Trial Counsel (oo68455)
Leon D. Bass (0069901)
Jason H. Beehler (0085337)
Beth A. Bryan (0082076)
TAFT STETTINIUS & HOLLISTER, LLP
65 East State Street, Suite 1000
Columbus, Ohio 43215
[phone]
[phone] (fax)
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Defendant Attachmate Corp.

Attorneys for Plaintif!TriHealth, Inc.

15

Exhibit A

16

----------------------------------------

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Trihealth, Inc.,

)

Case No. 1:12-cv-00901

)

Plaintiff,

v.
Attachmate Corp.,
Defendant.

)
)
)
)
)
)

Hon. Sandra S. Beckwith
Mag. Judge Karen L. Litkovitz

)
)
)
)
)
)

Exhibit A

HIGHLY CONFIDENTIAL/ATTORNEY EYES ONLY AGREEMENT
AFFIDAVIT
The undersigned agrees:
I hereby attest to my understanding that documents, materials or things
designated "HIGHLY CONFIDENTIALIATIORNEY EYES ONLY" are provided to me
subject to a Protective Order of Confidentiality in the above-captioned proceeding; that I
have been given a copy of and have read this Protective Order of Confidentiality, and
that I agree to be bound by its terms. I also understand that my execution of this Highly
Confidential/Attorney Eyes Only Agreement Affidavit, indicating my agreement to be
bound by the Protective Order of Confidentiality, is a prerequisite to my review of any
documents, materials or things designated as "HIGHLY CONFIDENTIALI ATTORNEY
EYES ONLY" pursuant to the Protective Order of Confidentiality.

17

I further agree that I shall not disclose to others, except in accordance with
this Protective Order of Confidentiality, any "HIGHLY CONFIDENTIAL/ATTORNEY
EYES ONLY" documents, materials or things as defined therein, or any information
contained in such "HIGHLY CONFIDENTIAL/ATTORNEY EYES ONLY" documents,
materials, or things, in any form whatsoever, and that such "HIGHLY CONFIDENTIAL/
ATTORNEY EYES ONLY" documents, materials or things and the information
contained therein may be used only for the purposes authorized by the Protective Order
of Confidentiality.
I further agree and attest to my understanding that my obligation to honor
confidentiality of such "HIGHLY CONFIDENTIAL/ATTORNEY EYES ONLY"
documents, materials or things will continue even after this litigation proceeding
concludes. I further agree that I will be subject to the jurisdiction of this Court while the
litigation is pending and subject to the jurisdiction of any Court or tribunal of
appropriate jurisdiction after the termination of the litigation for the purpose of any
proceedings relating to enforcement of the Protective Order of Confidentiality.

Date: _ _ _ _ _ _ _ __

By: _ _ _ _ _ _ _ _ __

(Print Name)

18